COURT OF APPEAL (CIVIL DIVISION)
London, WC2A 2LL
Wednesday 19th September 2001
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE LAWS
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|RICHARD HELAL NOUEIRI
Smith Bernal Reporting Limited, 190 Fleet Street
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Official Shorthand Writers to the Court)
Jeremy Morgan (instructed by the Treasury Solicitor as friend of the court)
Mr Anthony Alexander appeared in person
Crown Copyright ©
Advocacy services and rights of audience
The right to conduct litigation
The Solicitors Act
Publicity for these principles
LORD JUSTICE BROOKE : This is the judgment of the court.
"… that there be a hearing on the [26th July] 2001 to which Mr Anthony Alexander is directed to attend where the constitution will consider the question as to what order should be made in order to restrict Mr Anthony Alexander's activities in completing application forms on behalf of litigants, preparing papers for litigants and representing litigants in court."
(i) The nature of the inherent jurisdiction of any court to prevent its own procedure being abused was "extensive"; it was not closed; it could restrain "anticipated" but unidentified proceedings;
(ii) The use of its inherent jurisdiction to restrict litigation was not in conflict with Article 6 of the European Convention for the Protection of Human Rights. (See per Lord Woolf MR, pp 496-497). For ECHR jurisprudence on a court's right to protect its own process, see Golder v United Kingdom  1 EHRR 524 and H v United Kingdom (Appln No 11559/85; 45 TR 281), a case in which the Commission held that it was permissible to restrict the right of access to a court of a person who had previously abused that right.
"We wish to utilise the full remedy process, such being the full and complete exhaustion of all and any available local remedies, in the courts of the United Kingdom of Great Britain and Northern Ireland, in accordance with European law, pursuant to the Ambatielos principle, pending a hearing."
"It appears to me that all three applications before us, together with their ancillary applications, were attempts to prolong litigation which effectively came to an end on 24th April last when Keene LJ refused permission to appeal from His Honour Judge Krikler."
i) Mr Alexander had in the past been an experienced litigant in person, and on 15th May 2000 another division of the court had made a Grepe v Loam order against him (see Grepe v Loam  37 Ch D 168);
ii) He was also an undischarged bankrupt: he had told the court he was seeking to set aside a bankruptcy order made on 24th February 2000;
iii) In spite of these matters, he had sought permission, and had so far on a number of occasions obtained permission, to act as a lay representative for other litigants in person;
iv) On 1st December 2000, in a case called Mensah v Islington London Borough Council, to which we will refer in paragraphs 29-31 below, Peter Gibson LJ had said that the court should be very slow to permit Mackenzie friends to act as advocates. Mr Alexander was appearing for Mr Mensah on that occasion;
v) Since that warning, and the subsequent Grepe v Loam order, Mr Alexander made the misconceived and hopeless applications which had been before the court that day.
"None of the applications for permission to appeal has any merit, and indeed they have become increasingly unreal. The descent into fantasy was illustrated by the application [to Owen J in February 2001] that the [defendants'] skeleton should omit the word 'energetic'. Each of the orders currently under consideration was fully justified. The narrative of events provides a successful explanation for the orders, and why there is no realistic prospect of a successful appeal against them…
The courts from the master to the House of Lords have been inundated with a series of applications by Mr Alexander which have ultimately proved to be ill-founded. Time and again the exercise has been pointless and wasteful of limited court resources and from time to time has involved the defendants in additional expense. Having seen Mr Alexander on a number of occasions personally, I should record that although he has always treated the court with proper courtesy there is no doubt that the prospect of forensic battle holds no terrors or concerns for him, and that indeed he relishes the cut and thrust of the forensic process."
"In addition we rose for some one hour twenty minutes to enable Mr Alexander to prepare his submissions. In giving that permission, which was quite exceptional, speaking for myself, I was desirous of ensuring, so far as I could, that every possible point was put forward on behalf of Mr Mensah in his claim. I regret to say, however, to have experienced a little disappointment in that matter as it appeared that when the court resumed Mr Alexander was not fully familiar with this case."
"I add a few words on the unusual way that the hearing of this application for permission has proceeded.
Mr Mensah commenced proceedings in person and earned the commendatory remarks from His Honour Judge Kennedy QC which Arden LJ has already cited from Mr Mensah's appearances before that judge. Before us Mr Mensah appeared with a Mackenzie friend, Mr Alexander. Mr Alexander had applied some time ago to this court to be allowed to address the court on behalf of Mr Mensah. That was refused as Mr Alexander had no right of audience. When Mr Mensah was given the opportunity to address us today, it soon became apparent that he was not in a position to present his case himself and that despite this court's refusal to allow Mr Alexander to speak for Mr Mensah, Mr Mensah was relying on Mr Alexander to do just that. He asked that Mr Alexander should be allowed to make submissions. We were anxious that Mr Mensah should have a proper opportunity of dealing with the points taken against him by the defendants. In accordance with the overriding objective of the CPR and to avoid the waste of today's hearing, attended, as this court had earlier directed, by counsel for the defendants, we took the exceptional course in this highly unsatisfactory situation of allowing Mr Alexander to speak for Mr Mensah.
But I must make it clear that this should not be taken as creating any precedent as to how those who have no right of audience can act as advocates for litigants in person. Anyone who aspires to be an advocate should obtain the requisite qualifications, and the court should be very slow to permit those who are allowed to be present in court as Mackenzie friends to act as advocates. That is not the proper function of a Mackenzie friend. The position in law was recently restated by this court in R v Bow County Court ex parte Pelling  1 WLR 1807. I repeat and endorse the warning given by Lord Woolf MR at page 1825 that if a person chooses to appear regularly as a Mackenzie friend and uses the litigant as a mere puppet, such behaviour could provide a firm foundation for a judge not wishing him to be present as a Mackenzie friend.
Mr Alexander's first request to us was to ask for an adjournment to enable an application for legal aid to be made. But he told us that Mr Mensah had tried unsuccessfully to obtain legal aid on four previous occasions, and there is no reason to think that he would be more successful on a fifth attempt. Mr Alexander then asked for an adjournment on the basis that he had not had a proper opportunity to consider the papers and because the skeleton argument of one of the defendants arrived only last night and that of the other defendant only this morning. So far as he was requesting an adjournment to read the papers other than the skeleton, Mr Alexander has known for some time that he could appear as a Mackenzie adviser and he has had ample opportunity, in my view, to familiarise himself with the documents which Mr Mensah chose to put before this court. So far as he was requesting an adjournment to read the skeletons provided rather late by the defendants, it was plainly right that he should have that opportunity. We therefore adjourned the hearing for more than an hour to enable him to read those brief skeletons and to consider them.
Mr Alexander did not begin to grapple with the difficulties provided by the documents referred to by my Lady, nor with the conditions posed by the Limitation Act. Having heard what he has had to say, I too am in no doubt, for the reasons given by my Lady, that the appeal has no prospect of success. Indeed, I would go further. This is an attempt to appeal in a case where there has already been one unsuccessful appeal to a court. Mr Mensah would have had to show that a point of principle of practice was raised or that the case was one which for some other compelling reason should be considered by this court: see paragraph 2.19 of the Practice Direction for the Court of Appeal (Civil Division). That test, in my judgment, was plainly not satisfied."
"Just thought I'd drop you a line to pass on a call from Anthony Alexander that I received after you'd gone this morning.
Anthony's understanding of your situation (this might be right or wrong) is that in order to take your case to Europe you have to have gone through every possible legal procedure in the UK first. This includes the House of Lords. To get to Europe you therefore have to apply to the House of Lords even though they will certainly turn down your application – it's procedure you have to go through. Unfortunately an application costs £570.
Anthony suggests that one way out of this is for him to write to the Court of Appeal and ask them to waive the application fee for the House of Lords. They will probably say no, quoting the Lane v Esdaile case but he feels it is worth trying. He is going to do this."
"Mr Alexander continues to advise Mr Mensah (who is on benefit) to put up £570 in cash to pursue an appeal to the House of Lords. This notwithstanding the fact that Mr Alexander has demonstrated that he is aware of Lane v Esdaile."
i) The fact that he gave bad advice to those he sought to assist. This led to a waste of court time and exposed them to the risk of adverse costs orders. It also meant that other litigants had to wait longer for their cases to he heard;
ii) The fact that he gave this assistance to people who were already vulnerable. (This was a matter of particular concern to the RCJ Advice Bureau);
iii) The fact that he told Mr Mensah that he expected to receive 20% of his winnings as recompense for his pro bono services;
iv) The fact that he held himself out wrongly as a lay representative competent to assist litigants in their cases;
v) The fact that although he was eloquent and articulate as an unqualified advocate, he was also an incompetent advocate, as the judgments of this court in the Mensah case showed.
"'right of audience' means the right to appear before and address a court including the right to call and examine witnesses;
'right to conduct litigation' means the right
(a) To issue proceedings before any court; and
(b) To perform any ancillary functions in relation to proceedings (such as entering appearances to actions)."
Advocacy services and rights of audience
i) A McKenzie friend has no right to act as such: the only right is that of the litigant to have reasonable assistance (see p 1824G.)
ii) A McKenzie friend is not entitled to address the court (see pp l823E,1824G.) If he does so, he becomes an advocate and requires the grant of a right of audience under section 27.
iii) Generally, a litigant in person who wishes to have a McKenzie friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require (see pp 1827D and 1823G). However, the court can prevent a McKenzie friend from continuing to act as such where the assistance given is inimical to the efficient administration of justice, for example where the friend is indirectly running the case or using the litigant as a puppet (see pp1823G-1824A, 1824E, 1825D-F).
"An assistant can be ordered to stay away from the litigant or to leave the court if he is disorderly, just as any member of the public can be removed. If he wastes time unnecessarily, as by prompting the litigant to ask irrelevant questions, or causing delay by long consultations, he should be warned; and if this conduct persists his assistance should be terminated. Courts already have, on occasion, the task of controlling professional advocates and litigants and persons who cause unnecessary delay …"
The right to conduct litigation
Section 20(1) of the Solicitors Act 1974
"No unqualified person shall act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction".
Human Rights Act 1998
"[The 1990] Act does give a discretion [to grant advocacy rights]. In my view, it is quite clear from the terms in which the Act as a whole is written that it is giving a discretion which is to be exercised only in exceptional circumstances … [The grant of advocacy rights in specific cases] is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements…. The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as [X] and that would be monstrously inappropriate having regard to the requirements that are place upon those who have normal rights of audience."
Attention must also be paid to what Peter Gibson LJ said in the same context in the Mensah case (see para 31 above).
i) That a second appeal from a circuit judge in the county court lies only to the Court of Appeal, and only that court can grant permission to appeal;
ii) That there is a higher threshold test for second appeals;
iii) That the decision of a single lord justice in court on an application for permission to appeal has been final both before and after the introduction of CPR Part 52;
iv) That if a High Court judge correctly refuses to grant permission for a second appeal because she has no jurisdiction, and the Court of Appeal subsequently refuses permission, it is improper to buy further time by filing an Appeal Notice in the Civil Appeal Office challenging the High Court judge's order;
v) That if the Court of Appeal refuses a litigant permission to appeal to the Court of Appeal, then the litigant's remedies in the national courts are exhausted. It is both unnecessary and futile to petition the House of Lords for permission to appeal, because the House of Lords has no jurisdiction to grant such permission.